Why Reproductive Rights Matter in an Open Society

When women control their reproductive destiny it helps dismantle the idea that their gender exists only to care for others. Women are given the prerogative to lead their lives as they wish.

A 14-year-old girl is raped. She tries to get an abortion. Hospital after hospital turns her away. A Roma woman giving birth is sterilized. She finds out only years later. Her doctor says it was because her people are lazy.

Deciding whether and when to become a parent is one of the most private and important decisions a person can make. For women, in particular, the ability to control decisions pertaining to their reproductive health means they control their own destiny. For this reason, reproductive rights are an essential component of an open society, without which women cannot enjoy full equality.

In recent weeks the European Court of Human Rights handed down two critical judgments on reproductive rights: protecting access to abortion after rape and prohibiting involuntary sterilization. The facts are very different, but both cases underscore the importance of personal autonomy in matters of reproduction and demonstrate why protecting reproductive rights underpins an open society.

P. and S. v. Poland

P. was fourteen when a classmate raped her. She reported the crime to police and sought medical care, but was never offered emergency contraception. Weeks later P. discovered she was pregnant. Determined to end her pregnancy, P. endured harassment and humiliation while navigating some of Europe’s most restrictive abortion laws.

Hospitals in her hometown of Lublin refused to provide her medical care. One doctor told P. she needed a priest not an abortion. The hospital in Warsaw also refused, and P.’s identity was leaked to anti-abortion protestors and journalists. P. and her mother went to the police for help. Instead, they were interrogated for hours and P. was placed in a juvenile detention center.

Finally the Ministry of Health intervened. P. and her mother made the long journey to yet another hospital in Gdansk. By then, P. was just a few days shy of Poland’s 12-week cut off for abortions in cases of rape. The hospital agreed to perform the abortion but refused to admit P. as a patient. P. and her mother were told to leave as soon as the abortion was over.

The Court ruled that Poland’s actions violated several Articles in the European Convention of Human Rights including the right to privacy (Article 8), the right to liberty and security (Article 5), and the prohibition against torture and inhuman or degrading treatment (Article 3). The Center for Reproductive Rights, which represented the plaintiffs before the Court, provides a more detailed explanation of the case and how the ruling sets new precedent regarding the sexual and reproductive rights of young women.

I.G. and Others v. Slovakia

When pregnant Roma women were admitted into Krompachy Hospital in eastern Slovakia to give birth they were segregated into special “Gypsy rooms” and made to use separate bathrooms. But the discrimination they faced in the hospital ward paled in comparison to what happened once they were under anesthesia.

The three women in this case were all sterilized against their will after undergoing a caesarean delivery. Their stories corroborate a documented pattern of deceit and coercion at the hospital: evidence of nurses obtaining last-minute “authorization” for sterilization after administering anesthesia to a patient and doctors misleading or threatening women after the fact so that they would retroactively sign “consent” papers. In some cases women were never told they were sterilized, and only found out years later.

Criminal investigations into the sterilization practices at Krompachy Hospital went nowhere. Prosecutors maintained that the women’s health had not been harmed and their rights had not been infringed, while doctors involved argued that sterilization was necessary because Roma did not know “the value of work.” In its ruling the Court found that Slovakia had violated the Convention, namely the right to privacy (Article 8) and the prohibition against torture and inhuman or degrading treatment (Article 3).

Reproductive Rights and Open Society

Women and girls on the margins—especially teenagers, Roma, women with disabilities, poor women, women engaged in sex work or who use drugs, and women living with HIV—are most at risk of having their reproductive rights infringed upon. Human rights organizations need to be engaged in efforts to protect women’s reproductive rights. We need to empower women and girls so they can be their own best advocates.

There are still so many places in the world where women do not have the right to make decisions pertaining to their reproductive health. Instead, the authorities decide when a woman should or should not have children. She has no control over the path her life will take. Everyone except the woman herself is able to decide what is in her best interest. She either is too young, too irresponsible, too incompetent, too lazy, or too poor to decide whether to end a pregnancy or have a child.

When women control their reproductive destiny it helps dismantle the idea that their gender exists only to care for others. Women are given the prerogative to lead their lives as they wish: To go to school. To pursue a career. To stay at home. To raise a family. To not have children or to have a number of their choosing. This can only happen when reproductive rights are acknowledged as human rights and are not sidelined to the margins of the movement.

The promise of an open society is a promise of equality. For women this means being able to control decisions pertaining to reproduction: whether she is a 14-year-old rape survivor in Poland trying to end an unwanted pregnancy or a Roma woman in Slovakia who was sterilized against her will. Without reproductive rights, women will never experience what an open society means.

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Andrea Friedman

posted on Nov 20, 2012

Thank you for this great piece -- I couldn't agree more that reproductive rights are crucial to women's equality and a fundamental part of an open society. Hope we can see more of these important stories.

I'm so happy to see OSF tackling this important issue. Access to the full spectrum of safe, legal, and patient-centered reproductive health care is critical to ensuring that women are equal participants in society. The framing of this post is excellent -- open societies depend on women's equality.

Thanks Rebecca! I couldn't agree more. Too often when people and organizations focus on improving the health and welfare of women and girls (e.g., poverty and education) they completely ignore reproductive rights in the process. We've got to stop the siloing of reproductive rights.

To play devil's advocate a bit here, is it necessary to create human rights that focus on reproductive rights if the ECtHR has, as a very preliminary step and with specific facts admittedly, implicitly included them in rights already established under the ECHR? I wonder about claims of certain rights when there is no legal remedy available for those "rights." Sure, it's merely semantics, but do rights really exist without legal remedies?

I guess on the other hand, do we force lawyers to attempt to couch their arguments in the language of pre-existing conventions instead of advancing the law?

Thanks for your comment Dave. I should say at the outset that I’m not a lawyer. That said, I'm not exactly clear on the argument you are making. Are you suggesting that in order for the European Court of Human Rights to recognize reproductive rights the Convention has to create a whole new set of human rights? If so, the premise is incorrect. In these decisions the Court saying that reproductive rights are part and parcel of human rights. There is no need to create a new set of rights because reproductive rights fall squarely within the mandates of Articles 3, 5, and 8 of the Convention.

However, favorable judgement are not enough! First of all, judges change; second of all, EHCtR is only one court, and it cannot possibly exist as the only remedy for women in Europe who face obstacles to obtaining abortion care and other reproductive health services. The cases that end up there are ones that are absolutely extreme situations. What we need to do is ensure that reproductive rights--including abortion--are interpreted as part of the panoply of human rights for women all over the world so that they can have access to reproductive health care including abortion!

You can read more about why it is important to include abortion among human rights in a great article written by one of my colleagues at the Open Society Foundations, Tatyana Margolin http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.jo...
Unfortunately, it is not available online for free, but people with subscriptions to legal databases can find it easily.

You wrote that reproductive rights need to be acknowledged as human rights. I understood that to mean reproductive rights should be spelled out in a separate human rights convention. If you simply meant that courts need to do a better job at applying current human rights standards to the area of reproductive rights then I agree. I was simply saying that there is no need to create more conventions when certain rights are covered under the umbrella of existing rights.

As far as the ECtHR being only one court, it is the court in Europe to handle human rights issues, provided all domestic remedies are exhausted (assuming they exist). Are you advocating for more international/regional human rights courts, or for the domestic courts in Poland and Slovakia (in particular) to apply the law as laid out in applicable HR instruments?

The human rights regime is still fairly young, and lawyers and academics alike agree that it is a dynamic field of law, changing to reflect emerging issues and problems that weren't contemplated when the Universal Declaration of Human Rights was negotiated. Just because certain rights may be "implicitly included" doesn't mean that they are articulated with sufficient specificity to make them "real" for all humans. There are many kinds of rights that are particularly important to groups that were (and maybe still are) marginalized that may not have been imagined in 1948, such as LGBTI rights, even thought they may be included in other rights already agreed upon--such as the rights to privacy and equality under the law. Nonetheless, it is really important to develop jurisprudence around these rights so that, as you say, there can be a remedy. It is all too easy for governments responsible for promoting and protecting these rights to claim they don't exist unless they have been affirmed in international treaties or the jurisprudence of human rights courts. (That is why we continue to advocate for new treaties). If human rights laws and courts are to remain relevant, they have to expand to address the lived experience of all sorts of people (including, even, women). To subsume rights relating to women's reproductive freedom under other rights may, unfortunately, perpetuate the second class status that many women experience. Women aren't a special interest group; they are the majority of the world's population. Surely the specific rights related to their reproductive life deserve to be name and protected with specific remedies?

I think you make a great point Betsy that is the other side of the coin that I had never thought of. When it comes to the advancement of law (through case law), I have always looked at that as being primarily developed from the arguments and legal reasoning of those claiming a violation of their rights (couching their argument in existing state duties), not at the governments attempting to create precedent through arguing there is no liability because existing laws don't include certain implied human rights. In that sense I can see the call for codifying specific rights even if they are (arguably) a subset of other currently enumerated rights.

Thanks Betsy! This is such an important point. When women are the majority of the world's population it makes no sense that reproductive rights are continually treated like a special interest cause (even within the human rights movement).

thanks for the excellent post, Rachel. Attacks against reproductive rights have proliferated in recent years in the CEE region, just as they have here at home. All women suffer from attempts to limit their ability to control their sexual and reproductive health, but as your piece demonstrates, marginalized women who are considered "inferior" are particularly vulnerable. See our recent paper on the reproductive rights and health of women who use drugs in Russia: http://centerwomenpolicy.org/programs/health/statepolicy/documents/REPRO...

Thanks Becky! This is a fantastic paper. It's great to see that even though the challenges faced by women in Russia are profound there are model programs like the one in St. Petersburg that prove when specialized services for pregnant drug-using women are provided, women are motivated to seek care. Great work!

Thank you for an excellent, harrowing piece, Rachel. Though the ECtHR decisions are welcome and long overdue, I assume that courts in Poland and Slovakia failed in both instances to recognize reproductive rights as basic human rights. Do you have a sense of whether the court systems and public opinion in both countries are generally moving in a positive direction?

Thanks Steve. I'm not sure about public opinion, but it is interesting to note the disparity in abortion rates between Western and Eastern Europe.

According to the Guttmacher Institute, "Both the lowest and highest subregional abortion rates are in Europe, where abortion is generally legal under broad grounds. In Western Europe, the rate is 12 per 1,000 women, while in Eastern Europe it is 43. The discrepancy in rates between the two regions reflects relatively low contraceptive use in Eastern Europe, as well as a high degree of reliance on methods with relatively high user failure rates, such as the condom, withdrawal and the rhythm method." http://www.guttmacher.org/pubs/fb_IAW.html

Thank you for this incisive and insightful piece highlighting how far we still need to go in Europe to secure women's sexual and reproductive rights! Unfortunately, Steve, the situation across Central and Eastern Europe is moving in a worrying direction. Conservative political forces across the region are taking cues from anti-choice activists from the US. We are now seeing more and more cases of "conscientious objection" by doctors refusing to perform abortions.

It is not only abortion that is at issue. In Hungary, women are denied the choice to deliver their babies without medical intervention. The imprisonment of Agnes Gereb, Hungary's leading home birth advocate, attests to how women are not trusted to make their own choices even about how to give birth (for an excellent piece on this, see http://www.guardian.co.uk/world/2012/apr/27/hungarian-home-births-jail). Gereb is being represented by the Birth House Association and Hungarian Civil Liberties Union, both supported by OSF.

The senseless death of Savita Hallapanavar in Ireland after she was denied an abortion while having a miscarriage underscores the need for sensible policies that respect women's agency and lives. Let's hope that more women will not have to die before we can achieve this across the EU.

Thanks for your comment Susan. I didn't know about the Agnes Gereb case, but reading more about it I found another cases before the European Court of Human Rights (Ivana Pojatina v. Croatia) to protect birth rights. It will be interesting to see how this issue pans out in Europe.

I'm dismayed to hear that conscientious objection is being used more and more to deny reproductive rights in Central and Eastern Europe. The ACLU has done some great work on this issue in the U.S. to stop the use of religion to discriminate (http://www.aclu.org/using-religion-discriminate).

This issue affects more than reproductive rights but also providing services to LGBTI people. Increasingly, hospitals, insurance companies, and pharmacies (many of which receive taxpayer dollars) discriminate against women by denying services like birth control, emergency contraception, and abortion. Religiously affiliated schools have even fired women for getting pregnant while single or for using in vitro fertilization.

The same arguments have been used by social workers who refuse to counsel gay people or hotels that close their reception halls to same-sex couples planning their weddings.

Decades ago religious freedom was also held up as an argument against racial integration at restaurants or religiously-affiliated universities because "God wanted the races to be separate."

In open societies, people have a right to their beliefs, but not a right to discriminate.

Another doctor practicing at a Catholic hospital in the northeast vividly recalled how he saved a woman’s life, in defiance of the hospital ethics committee’s refusal to approve an abortion when a fetal heartbeat could be detected:

I’ll never forget this; it was awful—I had one of my partners accept this patient at 19 weeks. The pregnancy was in the vagina. It was over. . . . I’m on call when she gets septic, and she’s septic to the point that I’m pushing pressors on labor and delivery trying to keep her blood pressure up, and I have her on a cooling blanket because she’s106 degrees. And I needed to get everything out. And so I put the ultrasound machine on and there was still a heartbeat, and [the ethics committee] wouldn’t let me because there was still a heartbeat. This woman is dying before our eyes. . . .Her bleeding was so bad that the sclera, the white of her eyes, were red, filled with blood.

After the delay, the patient was in the Intensive Care Unit for 10 days, and developed pulmonary disease, resulting in lifetime oxygen dependency.

In the United States, we are all entitled to our religious beliefs. However, those beliefs cannot and must not be used to harm others. When we enter a hospital, we should not have to wonder whether we will be able to receive necessary care. Savita Halappanavar deserved timely, safe, and medically sound treatment. American women deserve no less.

Thank you for writing this article and bringing attention to the fact that reproductive rights are an integral part of human rights, yet are rights that millions of women around the world are forced to live without.

I live and work on reproductive rights in the Philippines, where it is a battle to simply be given the right to access contraceptives and a skilled attendant at birth. Contraceptives and trained health professionals are plentiful in the Philippines but can only be accessed by those who have the means. Millions of women and girls are poor and cannot afford contraceptives so have to go without. As a result, more than 11 women die everyday from preventable complications of pregnancy and childbirth, and millions of couples have more children than they wanted, and more than they can adequately care for. Opposition from the Roman Catholic Church and conservative politicians are preventing the passage of a Reproductive Health Bill that would mandate free contraceptives to the poorest members of Philippine society. They oppose the RH Bill because Catholicism views contraceptive use as akin to abortion, and abortion is illegal in the Philippines.

As you correctly noted, without reproductive rights, women will never experience what an open society and what true freedom and choice means. I commend the work that the Open Society Foundations are doing to help bring about equality and empowerment for women worldwide. I hope you will continue to focus on reproductive rights, and especially that you will do some work in the Philippines!

Thanks for your comment Ami. When a woman can choose how many children she wants to have (and when she wants to have them) she can profoundly alter the course of her life. But in so many places--including the Philippines--there is such strong opposition to access to contraceptives, basic information on family planning, and comprehensive sex education. It's no surprise that the country has the second highest teen pregnancy rate in Southeast Asia. Trying to combat poverty and improve educational outcomes in the country will be impossible if access to birth control remains out of reach for most women there.

Thanking you for your great effort writing this important paper on repruductive health rights which is really the womenrights needs for women empowerment in the open society and the whole world.In Bangladeshi many women gone to hospital for child birth later found sterilized it's bad ,against women rights women empowerment so women never enjoy freedom liberty. so there is no open society no freedom liberty for women. It exists in black and white paper as a fairy-tale....

Thanks for your comment Shahriar. I completely agree about the connection between true freedom and liberty for women and basic reproductive rights. It shouldn't be a surprise that in places like Bangladesh, where basic reproductive rights are hard to come by, violence against women is all too prevalent. Last year's story of 14-year-old Hena Akhter is but one example. Raped by a cousin, accused of adultery, and subjected to public whipping, Hena died of her injuries.

When women and girls are treated as second class citizens, violence against them is tolerated. Those who want to preserve inequality will do everything they can to prevent access to sex ed, contraception, and abortion.

Great post, Rachel. And of course we're grateful that OSF supports grantees in other parts of the world doing similar work, so we at SALC were able to assist women in Namibia bring a case earlier this year which recognised the unlawfulness of the coercive sterilizations they endured and awarded them compensation. The judgment and details about the case are available here: http://www.southernafricalitigationcentre.org/

And our most recent report, "Tackling Cervical Cancer: Improving Access to Cervical Cancer Services for Women in Southern Africa" details the deficient services available for prevention, early detection and treatment of cervical cancer in southern Africa, resulting in often severe impairment of reproductive capacities and thousands of easily preventable cervical cancer-related deaths. The report is also available on our website.

Thanks Nicole! Fighting these battles wouldn't be possible without the work of grantees like the Southern Africa Litigation Centre. So many people don't realize that cervical cancer is primarily an illness of inequality. As your report notes, approximately 86% of all cervical cancer cases occur in developing countries.

Part of the problem is a lack of awareness. Often the same people that want to restrict access to contraception and abortion also want to restrict comprehensive sex ed. I would argue that inequality of the sexes is related to prohibiting information on how to prevent unintended pregnancy and STDs.

I am pleased that OSF is keeping us informed about abuses done by police, and other governmental actors. This should not be tolerated in any society. My worry and concern continues to be about certain religious groups assuming they are God and making life unfair to others.

Thanks Irving. One of the biggest challenges in an open society is a how to live together and allow people to absolutely disagree each other's viewpoints and beliefs.

When it comes to religions freedom I think the ACLU put it best: Religious freedom means that we all have a right to our religious beliefs, but this does not give us the right to use our religion to discriminate against and impose those beliefs on others who do not share them.

Dear Rachel, thanks for this very important information. indeed in many of our countries, women suffer alot from these similar injustices! women while giving birth even in hospitals are not taken as important petients! some deleiver from the floor/from the ground, some die because no nurse to attend to them, many loose their babies because no professional health work can attend to them, while some are beaten /slapped by nurses in hospitals as they try to express their pain during child birth, and lots of very annoying experiences that women and girls go through!

Thanks Rehema. Conditions during childbirth are indeed a pressing issue. Every minute, at least one woman dies from complications related to pregnancy or childbirth--that's about half a million women, most of whom live in poverty.

As the Center for Reproductive Rights has said: "Death on this scale is not an inevitable danger of pregnancy and childbirth—it is a preventable loss of life and the tragic result of policy decisions that too often neglect, devalue and discriminate against women."

Thanks for the comment. In my experience, I think many people are shocked to hear that sterilization of women is a modern day problem. Most people think it is something that no longer happens. Hopefully the work of our grantees will help bring more attention to this issue.

Human rights are fundamental aspect of every one but the only problem that other nations faces is of luck sensitization to their communities This as affected so many people mostly in developing counties may it is because of funding towards this projects to other sector of society,mostly the private sector NGOs.Because the government can not do it alone. We need conceted effort from all walks of life.I hope they will be more money going towards this.

Great Jurisprudence in the European court on reproductive health rights. I fully concur that this rights cannot be put at the periphery but must enforced and respected on an equal basis with other rights. Interesting to note how this kind of violations are overarching with Article 12 of the CRPD on Legal Capacity.

Thanks for your comment Michael. It's an interesting point, but I’m not quite sure whether you are suggesting the failure to recognize reproductive rights distinctly denies women full legal capacity, a violation addressed with respect to persons with disabilities in Article 12 of the CRPD? But perhaps I misunderstand?

Thank you, Rachel, for the excellent piece on reproductive rights, which has stimulated an equally excellent discussion on the issue. It is encouraging to see that the Open Society Foundations are doing so much to defend and expand the right to abortion and other reproductive rights and that so many people support this important work. Much more of course needs to be done throughout the world, including in the United States, where the right wing launched a vicious attack on women during the recent electoral campaign. Luckily, the voters defeated the most extreme candidates. Yet the right to abortion is far from secure, with many states trying to chip away at it by adopting onerous, nonmedical regulations meant to deny or delay the procedure. Abortion will remain a bellwether for women’s equality until politics and especially religion are removed from the discussion. I hope to read more Open Society pieces on progress in establishing the right to abortion in law and in practice.

Thanks for this article. An unestimated number of Romani women in Slovakia were subjected to coercive sterilization and Slovkia ought to acknowledge it, apologise, compensate those women and make sure that safewards are in place to make sure that Romani women do not have to be afraid of visiting a doctor. The Czech Republic issued an apology in 2009 and Sweden set un special compensation mechanism. Slovakia should follow similar steps.